of the division of the said commons and waste grounds are hereby directed to be raised and paid; but that all the said fences shall, after the first making and erecting thereof, at all times for ever thereafter be maintained, repaired, preserved, and kept in repair by and at the expense of the said William Smith and his successors, vicars at the said parish of Ainstable. In 1820 and 1821 the commons and waste grounds in the parish of Ainstable were enclosed, and certain parts thereof, containing in the whole 465 acres, were set out and allotted to and for the said William Smith and his successors, vicars as aforesaid, by the said commissioners, in lieu of the said tithes, according to the statute; and in 1821 the said William Smith, as such vicar, entered [*776 into possession of the said allotments, *whereof the outermost or ring fences had been made according to the directions of the commissioners, with sods and quick-thorns, and posts and rails, the posts and rails being calculated to last not more than three or four years. The said fences were paid for as the act directs. At the time of the death of William Smith the said fences were greatly dilapidated and broken down, and it would require 100%. to put them into proper repair. This case was argued in Easter term, 1834.(a) Armstrong, for the plaintiff. The question is, whether the vicar and his successors were liable to repair the fences in question, and whether the nonrepair was a dilapidation by the late vicar, for which the plaintiff may recover against the present defendants. As to fences generally, it is laid down in 2 Burn's Ecclesiastical Law, tit. Dilapidations, p. 150, 8th ed., that "inclosures, hedges, ditches, and such like" are among the things "of which the beneficed person hath the burden and charge of reparation:" and at p 152, under the same title, hedges, fences, ditches, and such like, are said to be comprehended among the things referred to as subjects of dilapidation in stat. 13 Eliz. c. 10. The fences in question, when erected, became part of the glebe, and would have been repairable by the incumbent under the general rule of law; but the local act enforces in positive terms the repair, by the vicar and his successors, of the fences to be made under the commissioners' direction; and the case expressly states that these fences were so made. upon Dundas, contrà. It is undoubtedly settled that an action on the case lies, by the custom of England, *against the executors of a deceased [*777 rector for dilapidations, 1 Wms. Saunders, 216 a, note [a] to Wheatley v. Lane, 5th ed., Degge's Parson's Counsellor, p. 94; 2 Williams's Law of Executors, p. 1068. But, in the first place, no action lies against the executors, by the law and custom of England, in this case, where the charge of repair is thrown the incumbent by a modern act of parliament. There is no express deci sion on the point, but none of the authorities give any sanction to the charging of executors in such a case as this. In the former case of Bird v. Relph, 4 B. & Ad. 826, the attempt was to make the executors of the late vicar answerable for his neglect to cultivate the glebe in a husbandlike manner; but the Court refused to extend the liability of executors by any new application of the principle as to dilapidations, nor would they recognize an implied contract for good husbandry between the parson and his successor. In Sollers v. Lawrence, Wilies, 413, executors of a deceased incumbent were subjected to an extraor dinary liability, but it was under special provisions of an act of parliament. In Young v. Munby, 4 M. & S. 183, it appears that the plaintiff, as rector, had recovered against the executor of his predecessor for non-repair of gates and hedges; but that was a case within the general law and custom. Wise s Metcalfe, 10 B. & C. 299, and a passage there, page 306, cited from Lyndwood's Provinciale, lib. 3, tit. 27, p. 250, shew that the liability in respect of dilapidations is to be confined to reasonable limits, and regard had to the means furnished by the benefice. From all that can be collected on the subject, it is (a) April 22d, before Littledale and Parke, Js. Lord Denman, C. J., was attending the House of Lords, Taunton, J., in the bail court, Patteson, J., at Guildhall. clear that no charge for dilapidations is maintainable, unless *by the *778] general law and custom, or by express enactment. Secondly, if the executors could be rendered liable for repairs under this act, there was a condition precedent to any such liability accruing, viz., that the fences should be well and sufficiently made. Here that was never done, for it is found that the posts and rails of the fences were not calculated to last more than three or four years. [PARKE, J. The fences are to be well and sufficiently made in such manner as commissioners shall direct: might not it be answered, as to the condition precedent, that they have made the fences according to their judgment? And if any one was dissatisfied with the mode of doing it, should not he have appealed at the time ?(a)] To any complaint by the first vicar, it might have been answered that the fences were perhaps sufficient to last his time. In the General Inclosure Act, 41 G. 3, c. 109, s. 25, the legislature evidently considered seven years as the time to be allowed for a quickset hedge to grow up; and these commissioners ought to have adopted the same reckoning in constructing their fences. The case is, in principle, like Rex v. Cumberworth, 3 B. & Ad. 108, where it was held that the trustees were bound to complete the turnpike road before they could throw upon the public the burden of repairing it. Armstrong, in reply. The private act here operated as an agreement sanctioned by law, under which the vicar and his successors became bound to maintain the new fences, as an incumbent is bound to maintain *779] *thing any originally forming part of his glebe. The enactment that the vicar shall repair the fences would be in a great measure frustrated if his successor could not sue the executors for non-repair. The condition precedent was sufficiently fulfilled. Cur. adv. vult. LITTLEDALE, J., now delivered the judgment of the Court. After stating the case, his lordship proceeded as follows: There is no doubt that, as to the fences of the ancient glebe, the executors of a vicar are liable to the successor for dilapidations; that appears from Lyndwood, p. 254; and so also Gibson in his Codex, p. 752, in a note on the stat. 13 Eliz. c. 10, which was made, to prevent fraudulent deeds made by spiritual persons to defeat their successors of their remedy for dilapidations, says, that though it only speaks of palaces, mansion-houses, and other edifices and build ings, yet it is certain that under that name are comprehended hedges, fences, &c.; and in the form of Gibson, p. 1498, on a commission to inquire into the dilapidations of a bishop, there are enumerated defects, amongst other things, in the walls and inclosures: and here the defendant himself does not doubt his liability in respect of the fences of the ancient glebe lands, for as to that cause of complaint he has let judgment go by default. But the question is, whether the representatives of the vicar be liable for the non-repair of the fences of the allotment which was mas made to him under the act of parliament mentioned in the case. The act directs that the outward fences of allotments to the vicar *780] shall be repaired by and at the expense of *the vicar and his successors, after they have been made and erected by the commissioners: but this action is not brought upon the provision of the act which directs the vicar to repair the fences, but it is brought upon the liability arising upon the law and custom of England; and then it is to be considered whether the allotment which has been made only a few years ago, in lieu of tithes, is such a piece of land as that the law and custom of England as to this liability of the vicar will attach upon it. What is called the law and custom of England does not mean a custom in (a) By Sect. 45, of the act (not set out in the case), any person thinking himself aggrieved by anything done in pursuance of the act (except in cases where the commissioners' determination was declared to be final), might appeal to any quarter sessions to be holden for the county, within four months next after the cause of complaint should have arisen. the sense of a custom from time immemorial; but it merely means the common law, as is stated by Mr. Justice Bayley in delivering the judgment of the Court in Wise v. Metcalfe, 10 B. & C. 312. If it was confined to such lands as belonged to vicars before and at the time of the commencement of legal memory, there is scarcely a vicar in the kingdom whose lands would be affected by it. Vicarages did not exist at common law in the way they are now constituted. In Gibson's Codex, p. 719, it is said that there were no vicarages at common law, or, in other words, no tithes or profits of any kind do de jure belong to the vicar but by endowment or prescription; and there was no quare impedit for the advowson of a vicarage before Westminster 2, c. 5, 13 Ed. 1, st. 1, c. 5, s. 4, (see 2 Inst. 363, 364, (31, 32,)) nor a juris utrum for the possessions of a vicar before 14 Edward 3, st. 1, c. 17. And afterwards he says, where the books of common law speak of the beginning of vicarages, some fix it in the reign of Henry III., and others in the reign of King John; and he afterwards quotes some authorities to shew that there were at least some vicarages in *the time of Henry II. It is not material whether there were any before the time of legal memory; if any, they are few in number, and we only cite those passages to shew that much the greater part at least of the possessions of vicars commenced since the time of legal memory. And by the statutes of 15 Rich. 2, c. 6, and 4 Henry 4, c. 12, directions are given for the endowment of vicarages, and several late acts have passed for giving power to different classes of persons to augment vicarages without a license from the crown, notwithstandthe statutes of mortmain. [*781 We never heard any doubt expressed but that all the lands of vicarages, whether upon very old or more modern endowments, fall within the rule as to dilapidations. And we are of opinion that this allotment follows the same rule, and is to be treated as the old glebe of the vicarage, and the more so, if it wanted any other reason, that it is in lieu of the tithes of the vicarage. It does not, however, necessarily follow, that if a vicarage be endowed with new land, or, as in this case, with an allotment of common, the vicar would be bound to repair the fences, because, if it came to the vicar without any fences to it, the vicar, in most cases at least, would not, unless he put up fences himself, be bound to fence it, so as to subject his representatives to an action for dilapidations. But in this case the commissioners are to make the outward fences in the first instance, and therefore it comes to the vicar in an inclosed and fenced state: therefore, even without the direction in the act that he was to keep up the fences at his own expense, the common law would attach upon it, as far as related to his successors. [*782 It seems, from the case, that the fences were not properly *put up by the commissioners. By the act, they were to be the judges in what way it was to be done: possibly, if it could have been clearly made out that the fences were insufficiently made under their directions at first, a mandamus would have lain to compel them to make proper fences which were likely to be permanent; but it is now too late to do that. We are of opinion, therefore, that there must be judgment for the plaintiff. Judgment for the plaintiff. MOREAU against HICKS. Saturday, January 31. To deprive a plaintiff of costs, under a Court of Requests Act, for debts not exceeding 51. owing by persons residing within a district, it must appear that the defendant resided at the time of the action being brought; an affidavit that the defendant “resides” within the district is insufficient. An act excepted any debt for any sum, being the balance of an account or demand, ori ginally exceeding 51." Semble, that this exception applies to a debt reduced below 57. by payments made from time to time, while the items of debt forming a demand above 51. were being contracted. : ASSUMPSIT. Particulars of demand as follows:Attendance to instruct M. G. H. in drawing, from the 1st of October to the 16th of November, 1834 Miniature portrait delivered Drawing materials. Received at sundry time Due Pleas, the general issue, and a set-off. £12 12 0 5 5 0 18 1 0 4 19 6 £13 1 6 On the trial before the sheriff of Middlesex, the plaintiff had a verdict for 27. 8s. 6d. Platt, in Hilary term last, (January 26th,) obtained a rule nisi for *783] depriving the plaintiff of costs under the Court of Requests Act *for the Hundreds of Blackheath, &c., 47 G. 3, sess. 1, c. 4, (local and personal, public.) The defendant made affidavit that the jury had found specially, that only 21. 2s. were due for instruction, and 5l. 5s. for the miniature, and that they had deducted for the payment of 47. 19s. 6d. The affidavit further stated, that the payments were made from time to time, (whether before or after the delivery of the miniature did not appear,) while the plaintiff was teaching G. H., the defendant's son, and that the defendant "resides in the parish of Lewisham, within the hundred of Blackheath." Sect. 5, of the Blackheath Court of Requests Act enables parties to proceed in that Court for any debt not exceeding 5., against any person "residing or inhabiting within the said hundreds, or either of them;" but sect. 13 provides that the commissioners of that court shall not have power "to judge, determine, or decide, "on any debt for any sum, being the balance of an account or de mand, originally exceeding 57." Sect. 14 enacts, that any person suing in the Courts of Record at Westminster, for any debt not exceeding the sum of 57., and "recoverable by virtue of the said recited acts" [earlier acts respecting the same court] "and of this act, or either of them, in the said Court of Requests," shall not, by obtaining a verdict, be entitled to costs. W. Theobald, now shewed cause. The words in this act, as to the balance of an account, are the same as in the Southwark Court of Requests Act, 46 G. 3, c. lxxxvii. s. 12, (local and personal, public,) under which it was held, in *784] Fountain v. Young, 1 Taunt. 60, that the exception extended *to cases where the original debt exceeds 57., but is reduced below that sum by partial payments. That is the present case. The authority of that case was admitted by Lord Ellenborough in Porter v. Philpot, 14 East, 345. Besides, the defendant should have shewn that he was resident within the jurisdiction of the Court at the time of the commencement of the action; but his affidavit states only that he resides, that is, at the time of his deposing, within the jurisdiction. Platt, contrà. In Fountain v. Young, 1 Taunt. 60, the reduction was in the nature of a set-off. Here more than 57. was never due. [COLERIDGE, J. That distinction was taken in Nightingale v. Barnard, 4 Bing. 169, and Clarke v. Askew, 8 East, 28.] This cannot be called a balance. [LITTLEDALE, J. Suppose a merchant to sell goods at different times throughout the year, and to receive 207. in cash each time, would not any mercantile man call the remaining debt a balance?] That is the case of a general payment: this was a payment for the specific debt. [COLERIDGE, J. As to the residence, the words in Fountain v. Young, 8 East, 28, were, "at the time of commencing this action he was, and still is, (a) resident."] PER CURIAM.(b) This rule must be discharged, but without costs. *SPENCE and GRAEME, Executors of SPENCE, against SARAH [*785 ALBERT. Saturday, January 31. An executor suing on a count upon promises to himself as executor, stating a consideration, partly of money due to the testator in his lifetime, and partly of an account stated with himself as executor, is liable to costs if nonsuited; and cannot be relieved by the Court or a Judge under stat. 3 & 4 W. 4, c. 42, s. 31. ASSUMPSIT. First count, for goods sold and delivered, money lent, and money paid, by the testator, for money received to his use, and for money due on an account stated with him, laying the promise as made to the testator. Second count, for the same, and also for money due on an account stated with the plaintiffs as executors, stating a promise to them as executors. Plea, general issue. On the trial before Lord Denman, C. J., at the Guildhall sittings in June last, the plaintiffs were nonsuited, on proof that the defendant was a feme covert. The Master, on taxation, allowed the defendant her costs, on the ground of the second count alleging a cause of action by the plaintiffs not in their representative character; but he confined the costs, as to the record, to the second count. In Michaelmas term last, Alexander obtained a rule nisi for reviewing the taxation, on affidavit of the above facts, and of others favourable to the plaintiffs on the supposition that this Court had a discretionary power to relieve them under stat. 3 & 4 W. 4, c. 42, s. 31. In this term, (c) Ball, shewed cause. The 31st section gives the defendant a right to recover costs, if the Court or a judge *shall not otherwise order, in cases only where the executor sues in right of the testator. In all other [*786 cases, the law remains as before the act. There are no words restricting the former right of the defendant: the only limitation is, that the court or a judge may prevent him from exercising the new right conferred by the act. Now, on the second count, the defendant would have been, before the act, entitled to the costs which are allowed; Dowbiggin v. Harrison, 9 B. & C. 666; Jobson v. Forster, 1 B.. & Ad. 6; and she does not claim them under the act at all. In Lysons v. Barrow, 10 Bing. 563, the Court exercised a discretion in favour of the executor; but that decision (supposing it correct) expressly proceeded on the ground that, by the old law, the parties had no locus standi, except in their representative character. Here the second count is framed upon their claim in their individual characters. Alexander, contrà. The 31st section of the late act has hitherto received an extensive, rather than a narrow construction, as in Freeman v. Moyes, 1 A. & E. 338, where it was held applicable to actions commenced before the statute came into operation. Lysons v. Barrow, 10 Bing. 563, was a case exactly resembling the present; for there the money was charged as having been had and received to the use, not of the testator, but of the executrix. The statute sets the question of costs, as against executors who are plaintiffs, entirely at large, the Court having a general power of interference. [LITTLEDALE, J. I doubt whether we have any such power in this case.] Cur, adv. vult. (a) As to the words, "and still is," see Mansfield v. Brearey, 1 A. & E. 351. |